Court File and Parties

Court File No.: CV-22-1891 & CV-23-00002847-0000

Date: 2025-11-17

Superior Court of Justice – Ontario

Re: Thomas Simko, Applicant

-and-

Diane Pirner, personally and in her capacity as Estate Trustee for the Estate of Anna Simko, Respondents

AND RE: Thomas Simko as Estate Trustee for the Estate of Anna Simko, Applicant

-and-

Samantha Pirner, Respondent

Before: Justice Spencer Nicholson

Counsel:

• Jonathan Collings for the Applicant
• C. David Freedman for the Respondents

Heard: June 30, 2025

Reasons on Motions

NICHOLSON J.:

Background

[1] Anna Simko passed away on January 9, 2022. She is survived by her two adult children, the Applicant Thomas Simko ("Tom"), and the Respondent, Diane Pirner ("Diane").

[2] Ms. Simko appointed Tom and Diane as joint estate trustees in her will signed on June 19, 2018. Tom and Diane are also the sole beneficiaries under the will.

[3] Tom brought an application to remove Diane as estate trustee and to determine whether certain payments made by Ms. Simko to Diane are subject to a resulting trust and are accordingly due and owing to Ms. Simko's estate. That application was originally issued on December 5, 2022 and an amended application was issued on December 11, 2023.

[4] Tom commenced a separate application in which Diane's daughter, Samantha is the only respondent. He similarly seeks to set aside certain transactions made by Ms. Simko to Samantha. That application was commenced on December 11, 2023. The two applications have been combined for the purpose of trial by order of Perfetto J. dated January 26, 2024.

[5] There are two motions before the court, as follows:

(a) The Applicant seeks disclosure, and an extension of time to obtain that disclosure;

(b) The Respondents seek a declaration that the Applicant's claims are statute barred as a result of the expiration of the applicable limitation period.

[6] Since the outcome of the motion concerning the limitation period is determinative of the disclosure motion, I will address the limitation period issue first.

Nature of the Allegations

[7] Tom claims that Ms. Simko transferred the sum of approximately $600,000 to Diane on May 24, 2019, which funds he claims are now held by Diane on resulting trust for Ms. Simko's estate. This is the last of the impugned transactions.

[8] Tom also challenges eight separate transfers of money from Ms. Simko to Diane, ranging from $300 to $40,000, all of which took place between April 28, 2016 and May 1, 2018. The total amount that Tom seeks to have Diane return to the estate is $689,000.

[9] Finally, Tom argues that sixteen transfers from Ms. Simko to Samantha, ranging from $100 to $300 between October 29, 2009 and December 11, 2016, are subject to a resulting trust for the estate.

[10] Even with the six-month suspension of limitation periods due to COVID, from March 16, 2020, to September 14, 2020, there is no dispute between the parties that the two applications were commenced more than two and a half years after the most recent impugned transaction. From May 2019 to March of 2020 is approximately 10 months, followed by the six-month suspension of limitation periods. From September 2020 to December 2022 is a further 27 months. The total, non-suspended time, would accordingly be approximately 37 months.

[11] It is the position of Diane that the Limitations Act, 2002, S.O. 2002. C.24, Sch. B applies. As all of the impugned transactions were known to Ms. Simko at the time that they occurred, and there is no claim of discoverability, the limitation periods have all expired.

[12] It is Tom's position that s. 38 of the Trustee Act, R.S.O. 1990, c. T. 23, provides that an estate trustee has two years from the date of Ms. Simko's death to advance these claims and that his applications were brought in a timely fashion.

[13] It is important that Ms. Simko's capacity has not been challenged in these applications. She was presumed to be capable at law at the time of each of the impugned transactions and Tom does not take a contrary position. Furthermore, there is no allegation of fraudulent concealment by the Applicant.

Legal Analysis

Legal Principles Relating to Resulting Trusts

[14] The concept of a resulting trust is that it is imposed to return property to the person who gave it and is entitled to it beneficially from someone who has title to it. Tom relies on a resulting trust in this case to seek the return of the money transferred from Ms. Simko to her daughter and granddaughter to Ms. Simko's estate.

[15] The presumption of resulting trust is a rebuttable presumption of law that applies to gratuitous transfers. It is particularly important where the transferor is deceased and is unable to tell the court what her intentions were at the time of the transfer. Where a transfer is made for no consideration, the onus is upon the transferee to demonstrate that a gift was intended (see: Pecore v. Pecore, 2007 SCC 17). Equity presumes bargains, not gifts.

[16] The focus of the trial is the actual intention of the transferor at the time of the transfer. The trial judge must determine whether the presumption applies and weigh all the evidence regarding the actual intention of the transferor to determine whether the presumption has been rebutted (Pecore, at para. 55).

[17] In McConnell v. Huxtable, 118 O.R. (3d) 561, 2014 ONCA 86, Rosenberg J.A. described that a constructive trust is a proprietary remedy, as opposed to an independent cause of action. Similarly, a resulting trust would be a remedy, not a cause of action. The cause of action is typically unjust enrichment.

Legal Principles Relating to Limitation Periods

[18] Limitation periods serve an important public policy regarding litigation. They promote finality and certainty in legal affairs by ensuring that potential defendants are not exposed to indefinite liability for past acts. They ensure the reliability of evidence. They promote diligence, requiring litigants to pursue claims with haste (see: Levesque v. Crampton Estate, 2017 ONCA 455, 136 O.R. (3d) 161, at para. 53).

[19] The Limitations Act, 2002, provides for a two-year basic limitation period in s. 4 from the date that the "claim was discovered". Section 5 then sets out how to determine when a claim is "discovered" as being that day on which the person with the claim first knew:

(i) that the injury, loss or damage had occurred,

(ii) that it was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made; and

(iv) that having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.

[20] Importantly, pursuant to s. 5(2) of the Limitations Act, 2002, a person with a claim shall be presumed to have known of the matters set out above on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[21] Pursuant to s. 7 of the Limitations Act, 2002, the limitation period does not run during any time in which the person with the claim is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition. However, a person shall be presumed to have been capable of commencing a proceeding unless the contrary is proven. As noted earlier, Ms. Simko's capacity in these applications is not an issue.

[22] S. 38 of the Trustee Act, also contains a limitation period, providing as follows:

(1) Except in cases of libel and slander, the executor or administrator of any deceased person may maintain an action for all torts or injuries to the person or to the property of the deceased in the same manner and with the same rights and remedies as the deceased would, if living, have been entitled to do, and the damages when recovered shall form part of the personal estate of the deceased; but, if death results from such injuries, no damages shall be allowed for the death or for the loss of the expectation of life, but this proviso is not in derogation of any rights conferred by Part V of the Family Law Act.

(2) Except in cases of libel and slander, if a deceased person committed or is by law liable for a wrong to another in respect of his or her person or to another person's property, the person wronged may maintain an action against the executor or administrator of the person who committed or is by law liable for the wrong.

(3) An action under this section shall not be brought after the expiration of two years from the death of the deceased.

[23] Accordingly, the Trustee Act provides for a two-year limitation period in respect of claims that could be made by a deceased person for injury or damage to property (s. 38(1)). Importantly, that subsection provides that the estate trustee stands in the shoes of the deceased. The estate trustee "may maintain an action…in the same manner and with the same rights and remedies as the deceased would, if living, have been entitled to do".

[24] In contrast, s. 38(2) of the Trustee Act applies to cases in which the deceased person committed the wrong to another person and is accordingly the estate is the entity being sued in the litigation.

[25] Section 19 of the Limitations Act, 2002, provides that a limitation period set out under another Act which applies to a claim to which the Limitations Act, 2002 applies is of no effect unless the provision is set out in a Schedule. S. 38 of the Trustee Act is listed within the Schedule. Therefore, s. 38(3) of the Trustee Act takes precedence over the Limitations Act, 2002 where both Acts apply to a claim.

[26] An important distinction between the Limitations Act, 2002 and s. 38 of the Trustee Act is that the principle of discoverability does not apply to the Trustee Act (see: Waschkowski v. Hopkinson Estate (2000), 47 O.R. (3d) 370 (C.A.), at para. 8). On the other hand, as seen by the language of the Limitations Act, 2002, discoverability is an integral part of that Act.

[27] I note that claims involving real property are governed by the ten-year limitation period set out in the Real Property Limitations Act, R.S.O. 1990, c. L. 15. It is agreed that the claims in the applications before this court do not involve real property. However, case law relating to real property and applying the Real Property Limitations Act demonstrate that limitation periods do apply to claims made for equitable relief, such as a resulting trust.

[28] For example, in McConnell v. Huxtable, supra, the applicant brought an action for unjust enrichment seeking a remedial constructive trust in respect of real property owned by the respondent in the context of family law litigation.

[29] In McConnell, at para. 20, Rosenberg J.A. described that "[a] claim for a constructive trust as a remedy for unjust enrichment is a claim for a right to land".

[30] At para. 50, Rosenberg J.A. held that a claim for equitable relief, including a claim based on unjust enrichment, fits within the broad definition of "claim" in s. 1 of the Limitations Act, 2002, as a claim to remedy an injury, loss or damage that occurred as a result of an act or omission". At para. 52, he added that generally speaking, a claim for unjust enrichment requires that the defendant retain a benefit without juristic reason in circumstances where the claimant suffers a corresponding deprivation. The relevant act of the defendant is simply the act of keeping the enrichment (or the omission to pay it back) once the elements of the unjust enrichment have crystallized.

[31] Accordingly, Rosenberg J.A.'s analysis must mean that the cause of action for unjust enrichment arises at the time that the defendant retains the benefit without juristic reason, with the corresponding deprivation. I find that in the case before me, this would have occurred at the time that the impugned transactions occurred, assuming no juristic reason for the transfer (i.e., a gift).

[32] I note that other cases have reached the conclusion that the right to bring an action for unjust enrichment accrues on the date that the resulting trust was created (see: Sinclair v. Harris, 2018 ONSC 5718 and Singh v. Minhas, 2023 BCCA 7 at paras. 51-52).

[33] In Ingram v. Kulynych Estate, 2024 ONCA 678, the Ontario Court of Appeal dealt with a case against an estate framed as a constructive trust and unjust enrichment claim. Again, the subject matter of the trust was real property. The issue was whether the ten-year limitation period under the Real Property Limitations Act or the two-year limitation period under s. 38(3) of the Trustee Act applied. The Court allowed the appeal, holding that the two-year limitation period applied to the equitable trust claim.

[34] Roberts J.A., for the Court, noted the legislative policy that estates should be expeditiously administered and distributed and that estate trustees should have certainty that there are no other claims before they distribute estate assets to the named beneficiaries under a will. The expeditious administration of estates is in the interests of justice and there must be finality in the administration of estates (at para. 27).

[35] Roberts J.A. held, at paras. 51-52, that s. 38(2) of the Trustee Act, which uses the expression "wrong", should be interpreted broadly given the policy goals in estate matters and encompasses more than just tort claims against an estate. She described that "wrong" refers to "all actionable wrongs that wrong a claimant and for which the deceased may be found liable". The underlying policy considerations for a two-year limitation period apply to all estate claims captured under s. 38(2) of the Trustee Act. She then held that unjust enrichment is appropriately construed as a "wrong" falling under s. 38(2) of the Trustee Act.

[36] Roberts J.A. also held that McConnell, supra, does not apply to equitable trust claims against estates (at para. 65).

[37] The Applicant relies upon Ingram, supra, as holding that s. 38 of the Trustee Act applies to all litigation involving estates. However, I disagree. There is an important distinction between s. 38(1) and s. 38(2) of the Trustee Act.

[38] Section 38(2) of the Trustee Act pertains to claims against an estate. As noted by Roberts J.A., the important policy goal of timely administration of estates is furthered by finding that the two-year limitation period applies when claims are made against estates.

[39] However, the Applicant's interpretation of s. 38(1), which pertains to claims by an estate, would actually prolong the administration of an estate. That interpretation would require that an estate trustee review all transactions made by the deceased prior to his or her death potentially going back 15 years (the ultimate limitation period in s.15 of the Limitations Act, 2002).

[40] In Ingram, at para. 35, Roberts J.A., in describing s. 38(1) referred to the decision of Swain Estate v. Lake of the Woods District Hospital (1992), 9 O.R. (3d) 74, at para. 13, leave to appeal refused, [1992] S.C.C.A. No. 467:

[13] The only way to give effect to that subsection is to construe it as restricting to two years from death any longer limitation period which would otherwise be passed on to the administrator by the broad scope of s. 38(1) at the time of death. To do otherwise would make [s. 38(3)] completely redundant, as nothing more than s. 38(1) would be necessary to determine the applicable limitation period…However, the estate cannot get the benefit of the full remainder of the limitation period if it extends past two years after the death, as [s. 38(3)] will operate to cap the limitation period at that point ….[T]he language of s. 38 of the Trustee Act is clear that the extended limitation period … is superseded by the two-year limitation period in s. 38 of the Trustee Act.

[Emphasis added by Roberts J.A.]

[41] At para. 36 of Ingram, Roberts J.A. quoted from Camarata v. Morgan (2009), 2009 ONCA 38, 94 O.R. (3d) 496 (C.A.), at para. 8, where the Court of Appeal explained the effect of s. 38(3) of the Trustee Act in relation to s. 38(1) to create a shorter limitation period. I have also included para. 7, such that the two paragraphs read as follows:

[7] Section 38 of the Trustee Act modifies the harsh effect of the common law in respect of claims of a deceased person by allowing the deceased's representatives to maintain an action "in the same manner and with the same rights" as the deceased would have had, had he not died. The incident giving rise to the cause of action in this case is the motor vehicle accident. The deceased's death does not create the cause of action. Nor does s. 38 create a new cause of action. Instead, it allows the deceased's representative to prosecute an existing cause of action: see Swain Estate v. Lake of the Woods District Hospital (1992), 9 O.R. (3d) 74, at para. 13. Section 38(1) establishes the conditions under which an existing viable cause of action can be pursued after the deceased's death: see Ryan v. Moore, 2005 SCC 38, at paras. 26-27, and the analysis of Wells C.J. [2003] N.J. No. 113, 2003 NLCA 19, at para. 37.

[8] Section 38(3) of the Trustee Act does not have the effect of tolling a limitation period that excludes the limitation period made applicable to the action by ss. 4 and 5 of the Limitations Act. Section 38(3) creates a second limitation period that operates in addition to any limitation period that would have applied had the deceased been able to carry on with the action. In some circumstances, s. 38(3) will effectively shorten what would otherwise be the applicable limitation period: see Swain Estate v. Lake of the Woods District Hospital, supra. Section 38(3) cannot extend the limitation period that would have been applicable had the deceased not died and been able to carry on with his action.

[My emphasis]

[42] It is the last sentence quoted by Roberts J.A. that, in my view, answers the question before me. Section 38(3) cannot extend the limitation period that would have been applicable had the deceased not died and been able to carry on with her action.

[43] In the subject case, Ms. Simko's cause of action, if any, for the return of the money that she transferred to the Respondents, arose during her lifetime. While she was alive, the Trustee Act had no application to her claim and it would have been governed by the Limitations Act, 2002. She had two years from the date that she "discovered" that she had a claim to commence an action for unjust enrichment.

[44] Had she died during that two year period, ss. 38(1) and (3) of the Trustee Act, would have permitted her estate trustee to stand in her shoes, and pursue those claims on her estate's behalf. However, s. 38(3) would not have extended the limitation period, but would have only capped it.

[45] Tom relies upon Vout v. Vout, 2024 ONSC 4484. In that case, the respondent (who was self-represented) had been handling the financial affairs for the parties' mother since approximately 2008. The mother died in 2015. The applicant issued an application seeking a determination that there was a resulting trust in favour of the estate over the impugned assets. Abrams J. had previously held that the assets were impressed with a resulting trust in favour of the estate. That decision was appealed by the Respondent but the appeal was dismissed for want of prosecution. When it came on before London-Weinstein J., she was dealing with a motion for directions after Abrams J.'s decision. The issue of whether the limitation period barred the claims does not appear to have been raised or considered.

[46] Tom also relies upon Van De Keere Estate, Re, 2012 MBCA 109, where the Manitoba Court of Appeal upheld a decision of the trial judge who applied the presumption of resulting trust to reverse several large transactions made by the deceased to his daughter and order that the funds be paid to the estate. Those transactions occurred as many as five years before the deceased's death and before they were "discovered" by the deceased's other children. Again, the limitation period was not addressed by the court. Having reviewed the trial level decision, it is clear that the limitation period was not raised. However, a cursory glance at the Manitoba Limitations of Actions Act, C.C.S.M. c. L150, in force from 2002 to 2014 would suggest that the applicable limitation period at the time was six years. I make no specific finding in that regard. However, this would explain why neither the trial judge nor the Manitoba Court of Appeal dealt with the limitation period issue. The claims were made in a timely fashion. Van De Keere does not assist the Applicant.

[47] Tom also relies upon Rolston v. Rolston, 2016 ONSC 2937. In that case, Leach J. relied upon McConnell v. Huxtable to determine that the Real Property Limitations Act applied to claims for unjust enrichment and an associated remedy of constructive trust in relation to land. At paras. 60-64, he stated as follows:

[60] Whether or not our Court of Appeal intended its ruling in McConnell v. Huxtable to apply in the context of claims against an estate or estate trustee for unjust enrichment, constructive trust and alternative remedies is an interesting question, particularly when such an outcome might significantly prolong the "fiscal vulnerability of an estate" which the shorter two year limitation period in s. 38(3) of the Trustee Act was designed to limit.

[61] In my view, however, it is unnecessary for me to address and decide such issues, as section 38 of the Trustee Act has no application to the action before me in any event.

[62] In particular, as noted above, the simple reality of the matter is that the action before me, which is the subject of the defendants' motion, has not been advanced as a claim by Jane against Randal's estate or estate trustees. To use the words of s. 38(2), this action is not an action against the executor or administrator of a deceased person who committed or is by law liable for a wrong.

[63] It is instead an entirely inter vivos action, wherein Jane is advancing land-related claims for unjust enrichment, a proprietary constructive trust and alternative remedies directly against living defendants who currently have interests in land that formerly belonged to Randal and his estate trustees.

[64] In the circumstances before me, I see no reason why the limitation period applicable to those claims, against those defendants, should not be that set forth in section 4 of the Real Property Limitations Act, supra, for the reasons articulated by the Court of Appeal in McConnell v. Huxtable, supra.

(emphasis in original)

[48] I note that Dawe J. (as he then was), relied upon Rolston when he was the motion judge in the Ingram decision. In my view, the Court of Appeal addressed whether the holding in McConnell applied in estates cases and determined that it did not. The obiter comments by Leach J., which seem to anticipate the concern raised in Ingram, therefore appear to have been addressed in McConnell. Wilkinson v. The Estate of Linda Robinson, 2020 ONSC 91, had also relied upon Rolston and the Court of Appeal in Ingram specifically held that Wilkinson was wrongfully decided (at para. 65 of Ingram).

[49] In any event, Rolston does not alter my view that when Ms. Simko's cause of action arose she was living. Thus, the Trustee Act would have no application at that time and the only applicable legislation would have been the Limitations Act, 2002.

[50] Accordingly, I am of the view that the applications brought by Tom are caught by the two-year limitation period established under the Limitations Act, 2002. The application was presumptively required to be commenced within two years of the date of the last impugned transaction. Although this would have been extended by the COVID suspension by six months, it still would have expired prior to Ms. Simko's death. The limitation period cannot be revived by s. 38 of the Trustee Act, nor extended.

[51] As previously noted, both parties agree that Ms. Simko was competent at the time of the impugned transactions. That is important because my determination that the Limitations Act, 2002 applies may have important ramifications for estate trustees pursuing actions on behalf of estates for transfers made during the lifetime of the donor. However, given the incapacity provisions of the Limitations Act, 2002 (s.7), this does not open the floodgates to cases in which estate trustees are unable to seek redress where the deceased was incapable during the relevant time period. Other doctrines, such as fraudulent concealment, may still apply in appropriate cases.

[52] Furthermore, I agree with the submissions of the Respondents that cases where the property (real or otherwise) passed by way of survivorship, the transfer would occur at the time of death and this would trigger the limitation period. Thus my determination would not prevent an estate trustee from reviewing transfers involving a right of survivorship, such as in Pecore.

[53] My determination grants repose for estate trustees such that they need not conduct exhaustive backwards investigations into the deceased's financial affairs seeking to undo every transaction that occurred within the ultimate limitation period before the estate can be wound up. In my view, this determination accords with the policy considerations described by Roberts J.A. in Ingram. Estates can be administered with the same level of finality and in this instance, the estate is precluded from creating indefinite claims in its favour as against those who have long since completed their transactions with the deceased.

[54] Had the Applicant's interpretation of ss. 38(1) and (3) of the Trustee Act prevailed, it would have opened up indeterminate litigation by the estate against all those persons with whom the deceased might have interacted within the ultimate limitation period. That result does not accord with the purposes, however harsh, of limitation periods.

[55] Clearly, there is nothing inherently unfair about requiring a capable person such as Ms. Simko to sue within the Limitations Act, 2002 during her lifetime, had she been of the view that she had not intended to make a gift of the impugned transactions. However, it would be unfair to extend the limitation period by invoking s. 38(3) of the Trustee Act to require the Respondents to justify these transactions where there is no allegation that Ms. Simko lacked the capacity to make them as many as 16 years later.

Prematurity

[56] The Applicant took the position that it would be premature to dismiss these applications based on the limitation period. He argues that the determination of the limitation period issue is best performed by the application judge on a full record, after examinations are complete.

[57] I agree with the Respondents that the Applicant agreed to determine which of the limitation periods applied when he consented to the Order made by Gorman J. on January 31, 2025. Paragraph 4 of that order reads as follows:

4. THIS COURT ORDERS that the following issue shall be determined at the same time as the Applicant's motion for Directions is heard and in the same manner as if this issue were set out in the Applicant's Motion for Directions dated May 17, 2024:

The Respondent affirms, and the Applicant denies, that the claims set out at Paragraphs 4(a), (b),(c) of the Order granted in this matter by the Hon. Mr. Justice Perfetto on January 26, 2024 brought by or on behalf of the Estate of Anna Simko by the Applicant are statute-barred by the provisions of the Limitations Act, 2002, S.O. 2002, c. 24.

[58] Accordingly, the Applicant cannot now resile from that order.

[59] During arguments, the Applicant conceded that he was not taking the position that Ms. Simko lacked capacity at any time prior to her death. In his notice of motion, he states "Tom is not putting Anna's cognitive capacity to make gifts and loans into issue". Fraudulent concealment was not raised in either application.

[60] I have not heard this motion as a summary judgment motion. I am not making any findings of fact. Indeed, I considered no evidence, other than the parties' recitation of the facts in their facta. I am simply determining that at law, these applications are subject to the two-year limitation period set out in s. 4 of the Limitations Act, 2002.

[61] I had understood the parties to be ad idem that should I determine that s. 4 of the Limitations Act, 2002 applies, these applications could not be saved by discoverability and/or any incapacity on the part of Ms. Simko, and were, accordingly, out of time.

[62] Accordingly, I find that the applications were commenced out of time. I hereby dismiss the applications on that basis.

Disclosure

[63] Given my determination on the limitation period issue, there is no longer any reason to compel further disclosure in these applications.

Costs

[64] If the parties are unable to agree on the costs of these proceedings, the Respondents may serve and file written submissions not to exceed three pages double spaced through my judicial assistant at Nadine.Long@ontario.ca. The deadline for the Respondent's costs submissions is December 1, 2025. The Applicant may serve and file costs submissions within the same parameters by December 12, 2025.

Justice Spencer Nicholson

Date: November 17, 2025

Released: November 17, 2025